Title of Regulation: 18VAC48-70. Common Interest Community Ombudsman Regulations (amending 18VAC48-70-110, 18VAC48-70-120; adding 18VAC48-70-105).

Statutory Authority: §§ 54.1-2349 and 54.1-2354.4 of the Code of Virginia.

Effective Date: January 1, 2024.

Agency Contact: Tanya Pettus, Administrator, Common Interest Community Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8510, FAX (866) 490-2723, or email cic@dpor.virginia.gov.

Summary:

Pursuant to Chapters 20 and 21 of the 2023 Acts of Assembly, the amendments conform applicable provisions of the regulation to the legislation. Substantive amendments include (i) adding a new section to provide that upon receipt of a notice of final adverse decision, the Office of the Common Interest Community Ombudsman may either refer the adverse decision to the Common Interest Community Board for further review of whether the adverse decision is in conflict with the laws or board regulations governing common interest communities or review the adverse decision as provided in the board's regulation; (ii) requiring that upon receipt of a notice of final adverse decision, the Office of the Common Interest Community Ombudsman must provide a written copy of the notice to the governing board and, if applicable, the common interest community manager of the association that made the final adverse decision; (iii) providing that if the Director of the Department of Professional and Occupational Regulation determines that a final adverse decision is in conflict with the laws or regulations governing common interest communities, the director must provide the governing board and, if applicable, the common interest community manager of the association, with the determination; and (iv) providing that if within 365 days of issuing a determination to an association that an adverse decision is in conflict with laws or regulations governing common interest communities, the director receives a subsequent notice of final adverse decision for the same violation by the association, the director must refer the repeat violation to the Common Interest Community Board, which must take action in accordance with § 54.1-2351 or 54.1-2352 of the Code of Virginia as deemed appropriate by the board.

18VAC48-70-105. Receipt of notice of final adverse decision.

In accordance with § 54.1-2354.3 B 3 of the Code of Virginia, upon receipt of a notice of final adverse decision, the Office of the Common Interest Community Ombudsman may either (i) refer such adverse decision to the board for further review of whether such adverse decision is in conflict with the laws or board regulations governing common interest communities or interpretations thereof by the board; or (ii) review such adverse decision in accordance with the requirements of this part.

18VAC48-70-110. Review of final adverse decision.

Upon receipt of the notice of final adverse decision from the complainant, along with the filing fee or a board-approved waiver of filing fee, the Office of the Common Interest Community Ombudsman shall provide written acknowledgment of receipt of the notice to the complainant and shall provide a copy of the written notice to the governing board and, if applicable, the common interest community manager of the association that made the final adverse decision. The notice of adverse decision will not be reviewed until the filing fee has been received or a waiver of filing fee has been granted by the board.

In accordance with § 54.1-2354.4 C of the Code of Virginia, additional information may be requested from the association that made the final adverse decision. Upon request, the association shall provide such information to the Office of the Common Interest Community Ombudsman within a reasonable time.

18VAC48-70-120. Decision from the notice of final adverse decision.

A. Upon review of the notice of final adverse decision in accordance with § 54.1-2354.4 C of the Code of Virginia, if the director determines that the final adverse decision may be in conflict with laws or regulations governing common interest communities or interpretations thereof by the board, the director may, in his sole discretion, must provide the complainant and the governing board and, if applicable, the common interest community manager of the association with information concerning such laws or regulations governing common interest communities or interpretations thereof by the board.

B. The determination of whether the final adverse decision may be in conflict with laws or regulations governing common interest communities or interpretations thereof by the board shall be a matter within the sole discretion of the director. Such decision is final and not subject to further review. The determination of the director shall not be binding upon the complainant or the association that made the final adverse decision.

C. In accordance with § 54.1-2354.4 C of the Code of Virginia, if within 365 days of issuing a determination that an adverse decision is in conflict with laws or board regulations governing common interest communities or interpretations thereof by the board, the director receives a subsequent notice of final adverse decision for the same violation by the association, the director must refer the repeat violation to the board, which must take action in accordance with § 54.1-2351 or 54.1-2352 of the Code of Virginia, as deemed appropriate by the board.